Lecture Notes on Jurisprudence and Legal Positivism

Key Concepts

Focus of Law School Curriculum

• Emphasis on landmark cases (e.g., Marbury v. Madison, Plessy v. Ferguson, Brown v. Board of Education) in English-speaking countries.
• Third-year law students in the U.S. often explore jurisprudence (philosophy of law).

Jurisprudence Basics

• Legal Positivism: Dominant theory in jurisprudence today.
• Difficulty for students understanding this concept.

Social Phenomena

• Definition: Things dependent on human thoughts/actions for existence.
• Examples:
  • Money:
    • Value relies on societal acceptance.
    • Exists as long as people believe in it.
  • Fashion Trends: Depend on societal perception.
  • Social Rules (e.g., Elevator Rule):
    • Exist due to collective human behavior without explicit acknowledgment.

Non-Social Phenomena

• Example: Physical objects like tables.
  • Created by humans but do not depend on human thought for existence.

Legal Positivism Explained

• Thesis: Law is a social phenomenon, created and sustained by human actions and thoughts.
• Legal facts are social facts, established through human agreements and legislative processes.
• Example: Laws against crossing the street outside crosswalks are determined by social acknowledgment of their existence.
• Joseph Raz: Legal facts described as social facts (1979).

The Term "Positivism"

• Meaning: Suggesting or assuming existence through human thought.

Historical Theories Supporting Positivism

1. John Austin:
   • Legal systems explained by commands, sanctions, and obedience.
2. HLA Hart:
   • Introduced hierarchy of rules; law explained through social rules and psychological states.

Alternative Theory: Natural Law Theory

• Definition: Law as both a social and moral phenomenon.
• Legal facts determined by social and moral facts.
• Example: Laws against racial segregation as inherently unjust (Martin Luther King Jr.).

Separation Thesis in Legal Positivism

• Claims no necessary connection between law (what is) and morals (what ought to be).
• H.L.A. Hart: Key proponent of this view.
• Natural Law Critics: Assert that moral considerations must inform the understanding of law.

The Implications of Natural Law Theory

• Natural law theorists argue against unjust laws being regarded as law at all (e.g., MLK's perspective on segregation laws).
• Positivists assert that unjust laws can still be valid law, just morally reprehensible.

Main Takeaways

• Two Major Concepts of Legal Positivism:
  1. Social Thesis: Law as a social phenomenon, with legal facts as social facts.
  2. Separation Thesis: Distinguishes between law as it is and law as it ought to be.
• Understanding these concepts positions students ahead in grasping jurisprudence.